WHEN IS A CRIME The threat to vulnerable women in Latin America

Health. Access. Rights. ISBN: 1–933095–73–3

© Ipas 2013, 2014

Produced in the United States of America

Suggested citation: Kane, G., Galli, B., & Skuster, P. (2013). When abortion is a crime: The threat to vulnerable women in Latin America (third ed.) Chapel Hill, NC: Ipas.

Ipas is a nonprofit organization that works around the world to increase women’s ability to exercise their sexual and , especially the right to safe abor- tion. We seek to eliminate and the result- ing deaths and injuries and to expand women’s access to comprehensive abortion care, including contraception and related reproductive health information and care. We strive to foster a legal, policy and social environment sup- portive of women’s rights to make their own sexual and reproductive health decisions freely and safely.

Ipas is a registered 501(c)(3) nonprofit organization. All contributions to Ipas are tax deductible to the full extent allowed by law.

For more information or to donate to Ipas:

Ipas P.O. Box 9990 Chapel Hill, NC 27515 USA 1.919.967.7052 [email protected] www.ipas.org

The photographs used in this publication are for illustra- tive purposes only; they do not imply any particular atti- tudes, behaviors, or actions on the part of any person who appears in the photographs. WHEN ABORTION IS A CRIME The threat to vulnerable women in Latin America

Authors: Gillian Kane, Senior Policy Advisor, Ipas Beatriz Galli, Latin America Policy Associate, Ipas Patty Skuster, Senior Policy Advisor, Ipas

Researchers: Gretzel Brozovitch, Consultant Mercedes Cavallo, Argentina Consultant Ana Paula Sciammarella, Brazil Consultant

May 2013 Revised, November 2014 ii When Abortion Is a Crime

Acknowledgments We would like to express our gratitude to the following people for giving their time and expertise to the development of this report:

Katherine Romero, Women’s Link Worldwide Monica Roa, Women’s Link Worldwide Charlotte Hord Smith, Director of Policy, Ipas Barbara Crane, Executive Vice President, Ipas César Quiroga, Ipas Bolivia Malena Morales, Ipas Bolivia Oscar Cabrera, O’Neill Institute for National and Global Health, Georgetown University School of Law Paula Avila, O’Neill Institute for National and Global Health, Georgetown University School of Law Ana S. Alaya, O’Neill Institute for National and Global Health, Georgetown University School of Law Claudia Martin, American University Rossina Guerrero, Promsex Ysabel Marin, Promsex We also would like to acknowledge with appreciation the collaboration of women, judges, prosecutors, legal defense lawyers and police officers who were interviewed and who provided relevant information on how criminal laws are enforced and their human rights and legal implications. The threat to vulnerable women in Latin America iii

Table of Contents Executive Summary...... 1

Introduction...... 3

Methodology...... 4

Findings...... 5

Bolivia...... 5

Brazil...... 7

Argentina...... 9

Human Rights Obligations...... 11

Conclusion...... 13

Recommendations...... 13

References...... 14

Endnotes...... 15 iv When Abortion Is a Crime The threat to vulnerable women in Latin America 1

Executive Summary While abortion is one of the world’s oldest medical Selected findings practices, laws criminalizing abortion are a relatively In Bolivia, police investigations were initiated in 775 new phenomenon. The assumed intent is that the cases from 2008–2012, although relatively few led threat of arrest or imprisonment will prevent women to convictions. Under Bolivian law, women who are from having . But it is clear that criminal pregnant as the result of rape must begin criminal abortion laws do not stop abortion and have devas- proceedings against the perpetrator before they can tating negative effects on women’s lives. request judicial authorization for an abortion. But From 2011 to 2013, Ipas conducted an investigation judges rarely authorize abortions, generally claim- into the enforcement of laws criminalizing abortion ing conscientious objection based on religious and in three South American countries — Bolivia, Brazil moral grounds. In one troubling case, a 28-year-old and Argentina. The project sought to answer some woman in the city of Santa Cruz become pregnant fundamental questions: How many women are being as the result of rape. She attempted to self-induce arrested? How are these laws being enforced? What an abortion and ended up in the hospital with severe is the impact on women, their families and health- complications. While in the hospital, she was re- care providers when the law makes them criminals for ported to the police authorities by her doctor, was terminating a pregnancy? apprehended and handcuffed on charges of illegal abortion. She spent her 10-day hospital stay under This report reveals the varied ways in which the puni- police custody and was then transferred to a prison tive power of the state harms women’s reproductive where she subsequently spent eight months in autonomy, puts them at risk of arrest and impris- preventive detention. onment, and forces health-care providers to make unethical decisions about their patients. In Brazil, between 2007–2011 in Rio de Janeiro state, there were 334 police reports involving women who In Bolivia, Brazil and Argentina, abortion is highly re- had had illegal abortions. Court records from 2007– stricted. In the rare occasions when abortion is legal, 2010 show that 128 women were prosecuted. In one the barriers to access are insurmountably high. These case a woman was arrested in the hospital after barriers include refusal by medical professionals to seeking postabortion care. She was unable to afford provide care, legal requirements necessitating a bail and remained handcuffed to her hospital bed for judge’s authorization before an abortion is permitted, three months. and burdensome waiting periods, among others. This report also examines the human rights violations As a result, women who feel they cannot carry a that occurred when police, in search of pregnancy to term risk their health and lives by violations, raided a private family planning clinic in resorting to unsafe abortion; they also risk being Mato Grosso do Sul in 2007, confiscating the medi- charged with a crime. cal records of more than 9,600 female patients. This report documents accounts of hundreds of Four staff members at the clinic were prosecuted for women and health-care providers who have been participating in abortions and received prison sen- reported, arrested, charged, detained and some- tences ranging from four to seven years. times imprisoned for violating abortion-related laws. In Argentina, 417 sentences for the crime of abortion It is based on both quantitative and qualitative data, were identified during the period from 1990 to 2008, mainly focused on the period between 2006 and the majority against women seeking abortions and 2012. It includes statistics from police archives and unskilled individuals who were providing services. In judicial records; media reports; medical records; in- 2011, there was an exceptional case, according to depth interviews with women and agents of the state; records, involving a female physician, mother of two, and analysis of judicial proceedings. who was reported and spent more than a year under It is the first in a series that Ipas will issue on the the threat of criminal action for prescribing misopros- impact of criminalization of abortion in countries tol, a medication recommended by the World Health around the world. Organization for the termination of pregnancy. Finally, 2 When Abortion Is a Crime

the case was closed, but the physician had to suffer Recommendations the stigma and uncertainty of an open criminal action In light of these findings, Ipas recommends that all against her for more than a year. governments with restrictive laws take steps to: Human rights obligations • Remove abortion from criminal or penal codes and treat it as any other health-care service These cases and others documented in this report clearly demonstrate that criminalization of abortion • Eliminate barriers to access to safe and legal raises significant human rights as well as ethical and abortion public health concerns. When women and, in some • Educate the judiciary, police and health sectors on cases, the health-care providers who assist them, sexual and reproductive rights and how to imple- become targets of enforcement, they often are ment laws in accordance with these rights. stripped of their rights to due process and judicial guarantees and protections. The right to equal • Make reproductive health services and information treatment and non-discrimination is violated when, available to all people of reproductive age as in each of these countries, women who are poor, • Develop guidelines and policies for health-care young and uneducated are most likely to be prose- providers on the importance of preserving patient cuted. By contrast, women who are older, have re- confidentiality and safeguarding medical records sources and are educated can travel, if necessary, to obtain safe and legal abortions without fear of arrest. Until laws can be changed, governments and policy- The right to privacy and medical confidentiality is makers should take immediate action to ensure that violated when confessions are obtained while wom- any woman or health provider investigated or crim- en are receiving care in hospitals or during gyneco- inally charged for abortion receives full procedural logical exams. The right to privacy also is violated protections in accordance with the right to judicial when providers report women who are hospitalized due process. to law enforcement authorities. As this report shows, Abortion will always be necessary. The World Health many providers do, even though the abortion laws Organization states that an estimated 33 million in Argentina, Bolivia and Brazil do not require them contraceptive users worldwide are expected to ex- to report illegal abortion. perience accidental pregnancy annually while using In addition, the findings in this report are further ev- contraception. Laws that govern such areas as health idence that criminalizing abortion does not prevent care, the medical professions and medical malprac- abortion. Criminal abortion laws simply force women tice can and should be used to appropriately penalize to obtain illegal and unsafe abortions. Approximate- individuals who provide abortion without adequate ly 21 million women undergo unsafe abortion each skill. But laws should not be used to scare, shame year, almost exclusively in countries with restrictive and imprison women for seeking a health care ser- abortion laws. The end result is that 47,000 wom- vice. Such laws do grave harm to women’s health and en die each year and millions more are treated for human rights and further stigmatize abortion, a safe complications that often result in lifelong injuries and common medical procedure. and disabilities. The threat to vulnerable women in Latin America 3

Introduction Throughout history, women have terminated unwant- importantly, what is the impact on women and their ed pregnancies. While abortion is one of the oldest families — and in some instances, health-care provid- practices — dating to ancient Egypt, Greece and ers — when the law makes them criminals for termi- Rome (Devereux 1976) — criminalization of the proce- nating an unwanted pregnancy? dure and the incarceration of women is a more recent From 2011 to 2013, Ipas conducted an investigation phenomenon. into the enforcement of laws criminalizing abortion In South America, half of the nations’ criminal laws in Argentina, Bolivia and Brazil. The findings reveal policing women’s reproductive choices were drafted the selective enforcement of such abortion laws before the articulation of modern human rights (UN and the discriminatory and humiliating treatment Population Division 2001, UN Population Division, women receive for not choosing motherhood. 2002).1 Their continued enforcement negatively Violators may be threatened or penalized with affects the health and violates the rights of women in fines, public service or prison, serving sentences many ways. ranging from a few days to several years. Most women who are arrested are already marginalized Because abortion is highly stigmatized, simply being in some way — poor, Afro-descendent, indigenous, accused of an abortion-related offence can negatively or young, and lacking competent legal defense. impact a woman’s relationship with her family, em- ployer and community (Kumar et al. 2009). Investiga- This toxic mix of unjust laws and misapplication by tion, prosecution and imprisonment can have even some judges and law enforcement officials results more detrimental effects, contributing to a climate of in serious violations of women’s basic human rights. intimidation and fear that has damaged the lives of Data from this study also show that providers are millions of women and girls wherever criminal abor- primarily responsible for reporting women to the tion laws are in place and enforced. police. The majority of women in this study were reported to the police when they arrived in hospi- The problems are hardly restricted to South America. tals for emergency treatment for complications from Across the world, from the mass arrests in Brazil2 to unsafe abortion. Doctors who report women to law a woman in Idaho in the United States,3 there is am- enforcement violate their legal obligations4 to protect ple evidence in the popular media of women being women’s privacy and their ethical duty to maintain reported or detained for illegal abortions. Newspa- doctor-client confidentiality (McNaughton et al. 2006 per articles from 2006 to 2011 show that women and Cavallo 2011). have been arrested for illegal abortions in at least 30 countries. When alerted, police enter health-care centers and hospitals — sometimes arresting women, sometimes Investigating the problem handcuffing women to hospital beds while they recover from botched abortions.5 Generally, these Ipas sought to determine the magnitude of the are women with no criminal records; it is their first problem: How many women are being arrested? encounter with the penal system and they are subject How is the law being enforced? What is the role of to degrading treatment from hospital staff.6 health-care providers in enforcing laws? And most 4 When Abortion Is a Crime

Methodology This project applied a human rights fact-finding methodology (Orentlicher 1990) and collected and reviewed materials from the police, health and crim- inal justice systems. Because of the sheer scale and population of the countries being investigated, and because of the difficulty in accessing public records, the study focuses on select cities and states. Ipas looked into records of the largest or most influential cities in each country: Buenos Aires, La Paz and Rio de Janeiro. In Argentina and Brazil, state-level data also was reviewed. The investigation was divided into two parts. A pre- liminary quantitative phase looked at the incidence of reports, arrests and imprisonment or alternative penalties in each country. The qualitative phase consisted of in-depth investiga- tion and documentation of judicial cases and, when possible, included interviews with women and their relatives, lawyers, judges and prison administrators. Completion of the second phase varied by country and depended on access to the individuals involved. The quantitative data reviewed in the first phase came from police, judicial and hospital archives and media reports (including newspapers, magazines, the Internet, TV and radio) between 2006 and present day. Results varied depending on the information publicly available in each country. In Argentina, for example, to access public judicial and hospital re- cords, the researchers first had to submit requests to access the information to different state agencies, but not all of them received a response. In Rio de Janeiro, record keeping in the police system is substandard and the data collected had many inconsistencies and was sometimes incomplete. In Bolivia, not all of the judicial archives are digitized and records in some states date back only to 2008. Gaining access to all these records was challenging and in no country was there access to the full range of materials outlined above. Notwithstanding these challenges, there is sufficient evidence in public documents reviewed to show that criminal abor- tion laws are being enforced in larger numbers than anticipated and that the effect of the discrim- inatory enforcement negatively impacts the health and lives of women in all three countries. The threat to vulnerable women in Latin America 5 Findings FINDINGS

Bolivia The situation in Bolivia is alarming. The study found police, the police are then obligated to inform the that it was almost always poor women who were prosecutor’s office and either the police or the prose- reported to the police. Reports were generally filed cutor must begin an investigation. Because all official by a health-care provider, a relative, a partner or the documents related to cases prosecuting abortion are public prosecutor’s office. In some cases, the Om- held in the public prosecutors’ database, we did not budsman for Children and Adolescents filed a police look at police records.9 report on behalf of the fetus. Data review covered the years 2008–2012. A review Abortion cases languish for months at a time. Often of the prosecutors’ records found that investigations it will take years for a case to be archived.7 Once a of illegal abortions were initiated in 775 cases.10 In case is archived it can be reactivated if new evidence the city of Santa Cruz, there were 80 cases, and in is found and presented. While waiting for their cases La Paz, 349 cases.11 Of these cases one ended in a to go forward women are in a legal limbo, uncertain conviction and the woman in question, Helena, was about what will happen and how long it will take. imprisoned for eight months. According to Bolivian attorney César Quiroga, a legal expert on reproductive rights and Bolivia’s penal sys- Court records tems, “Complaints filed against women are used as a scare tactic or to teach women a lesson.” Judicial data reviewed from 2005 to 2013 came from the Supreme Court of Justice and the Constitutional Articles 263 to 269 of the Penal Code criminalize Court’s database. Both of these courts have national ; penalties are differentiated based jurisdiction. Archives from the departmental courts on the action, actor, and in some cases, the motiva- of the districts of La Paz and Santa Cruz were also tion. For example, punishment can be reduced for a reviewed. woman or a provider if an abortion is performed to “save a woman’s honor.” 8 Punishments range from Supreme Court of Justice: This is the final court to prison terms of one to six years. hear and process cases. Five cases arrived at this Court through an appeals process; one was against a resi- dent doctor for providing an illegal abortion at Oruro Methodology General Hospital. The other four cases date prior to Data were examined from media, police records and 2005 and are not included in the investigation. judicial records in the cities of La Paz and Santa Cruz. Justice Department Courts: All cases being appealed Public prosecutor’s office: Both the public prose- go through this department. From 2006 to 2012, 71 cutor’s office and the police can receive and issue cases of illegal abortions were filed in La Paz and 61 complaints against an individual for actions related were filed in Santa Cruz. It should be noted that La to an illegal abortion. If a complaint goes before the Paz’s population is significantly larger than that of San- ta Cruz. For the majority of women, after their illegal abortions were reported, their cases were dropped ei- “Complaints filed against women are ther because the accuser didn’t follow up or the police used as a scare tactic or to teach or the judicial system did not take action. women a lesson.”— attorney César Quiroga 6 When Abortion Is a Crime

The case of Helena Twenty-eight-year-old Helena12 is an indigenous ter a lengthy delay the appeal was denied by the First Guaraní Indian. She lives in extreme poverty with her Supreme Departmental Court of Santa Cruz on April young daughter in the city of Santa Cruz. In January 16, 2012. Helena remained in prison for eight months 2012, she was pregnant as a result of rape. She nei- until her case concluded in October 2012. She was ther reported the rape nor asked for judicial autho- jailed in poor conditions and despite not having been rization: She said she was afraid the police wouldn’t given a formal prison sentence, was made to share her believe her if she reported the rape and she was space with people convicted for a variety of crimes. unaware that she could have a legal abortion. She On June 6, 2012, Helena requested a hearing in did not know she could go to jail for having an abor- order to plead guilty to the crime of abortion so she tion. In her twenty-third week of pregnancy she took could expedite her case and return to her daughter. , suffered severe complications and went Helena’s mother took care of her daughter while she to the Percy Boland Maternity Hospital for care. She was in prison. Because of the stigma around abortion, delivered the fetus at the hospital, was handcuffed Helena never told her family what happened and and then apprehended while still in the hospital. explained her absence by saying she was working Helena was in police custody, guarded by two police in Argentina. Helena’s hearing request was resched- officers, for the duration of her 10-day hospital stay uled three times before taking place in October. Her while being investigated by the police’s homicide public defender never showed up to represent her. unit. She was then reported for the crime of abortion She was sentenced to two years of prison. However, to the public prosecutor’s office by the Ombudsman Bolivian legislation permits the option to serve the for Children and Adolescents. sentence outside of prison if a judicial pardon is re- During the investigation it was determined that a quested. Helena made and was granted the pardon. friend had purchased the pills for Helena from a phar- Eight months after her initial charge, on October 17, macy. Consequently the police raided several phar- 2012, following various administrative complications macies and closed them down for selling misoprostol in Palmasola prison, Helena was finally freed. without a prescription. No one was arrested. On February 3, 2012, Helena was formally charged and placed in preventive detention13 in Palmasola jail in Santa Cruz. Helena’s public defender immediately appealed the preventative detention order but af- The threat to vulnerable women in Latin America 7

FINDINGS

Brazil This study found several cases of women handcuffed ing outside Rio de Janeiro state without the judge’s to their beds after seeking health care for treatment authorization. The entire judicial process took six years of unsafe abortions. In one particularly egregious from the time the investigations started until the judge case, Ana,14 who sought care in a hospital after an made a final decision to conclude the case. unsafe abortion, was arrested and handcuffed to her This study also found a concerning upward trend in hospital bed for three months because she did not arrests of women in Rio de Janeiro state from 2007– have money to make bail. 2011. In some cases, women were arrested while they Although the conviction rates are low in comparison were in the hospital recovering from unsafe abortion. with the high numbers of illegal abortions taking Research also showed that women are criminalized place annually in Brazil, qualitative research reveals more often when they self-induced an abortion at that when women do go through the criminal justice home and then seek health care in public health fa- system in Brazil, their treatment is unforgiving, inhu- cilities than when they use clandestine clinics, making man, cruel and sometimes amounts to torture. Women health-care providers complicit in the violations of who are arrested or prosecuted are disproportionately women’s rights. of low socio-economic status, living in poor urban areas, have low literacy rates and use the public health Police records system. The majority are black and young. All women had children and none had criminal records. The Institute of Religious Studies/ISER, with Ipas support, conducted research of Brazil’s public secu- For some women there was an excessive delay rity system’s police archives in Rio de Janeiro state.16 between the introduction of a case into the criminal From 2007 to 2011, there were 351 police reports system and its conclusion. In one case it took the related to abortion registered. Of these, 334 were judge three years to issue a ruling. In some cases against women who had either self-induced an abor- the bail amount is set by the judge and may be on tion or had obtained one illegally from a provider. a sliding scale depending on the woman’s assumed The remaining 17 cases were the result of clinic raids socio-economic status (based on where she lives). In in which health-care staff — including doctors, nurses, order to be released women must have legal defense receptionists and others — were charged with criminal to present a petition on their behalf. Finding repre- activity related to abortion. Police records showed sentation can be very challenging. that in 122 cases the abortion took place in a wom- In one Rio de Janeiro hospital, the head of obstetrics an’s home; 105 took place in a hospital or clinic; and called the police after a woman who had induced an the remaining 107 took place in other locations. abortion with the help of a friend arrived at the hospi- A profile of women investigated and charged for ille- tal. The woman who had the abortion was imprisoned, gal abortions shows that a disproportionate percent- and the physician was a witness for the prosecution.15 age were disadvantaged in some way — 55 percent This woman had six children, was unemployed and were non-white women, more than half had finished poor. As a condition for the suspension of the wom- only primary school, and only 8 percent graduat- an’s case, the public prosecutor ordered that she was ed from high school. Seventy-eight percent of the prohibited from going to bars or staying out later than women were single. The impact of criminalization on 10 p.m. She also was obligated to enroll in a family young women is even more dramatic: 29 percent of planning program and was prohibited from travel- women in Rio de Janeiro state are under the age of 8 When Abortion Is a Crime

24, yet 45 percent of the women charged as criminals care or while the women are under emergency care. for an illegal abortion were under 24. Most of the In one case, a woman was arrested and charged young women prosecuted were between the ages following a confession to a police officer pretending of 18 and 23. Eighty-four (20.2 percent) of the cases to be a social worker. investigated were handled by the juvenile system.17 Police invasion of women’s right to Judicial records privacy in Mato Grosso do Sul The study investigated the number of women charged In Mato Grosso do Sul, Brazil, on April 13, 2007, for abortion in the state of Rio de Janeiro and how 18 police raided a private clinic and confiscated the they were treated. Records from the criminal justice medical records of more than 9,600 female patients, system available at the state Tribunal of Rio de Janeiro violating the women’s right to privacy and confiden- from 2007 to 2010 were found and reviewed. tiality in health care.21 Dr. Neide Mota Machado, the Because obtaining access to the physical records was clinic owner, and some of her health-care provider challenging, relevant information on the number and staff were prosecuted for illegal abortion based on location of judicial cases on abortion were obtained TV interviews and on the basis of seized clinic docu- through review of available records and interviews with ments and medical equipment. two judges, one public defendant, one public prose- In December 2009, Dr. Mota Machado was found cutor and a notary official from the Justice Tribunal of 19 dead in her car in Campo Grande. A police investiga- Rio de Janeiro state. The final stage of the research tion concluded that she had committed suicide. On involved the legal analysis of eight judicial cases. April 8, 2010, four health-care providers who worked The review of judicial records found 128 cases of at the clinic were found guilty and sentenced by jury. women prosecuted for illegal abortions.20 Of these A clinic psychologist was condemned to six-and-a- cases, only 3 cases (2.3%) had sentences based on half years of imprisonment. The three nursing auxil- evidence rather than on technical or procedural iaries received prison sentences ranging from four to grounds. Only one of these three women was acquit- seven years. They were accused of participating in 25 ted. A second woman was convicted and in the third abortions at the clinic.22 case the judge sent the woman to trial by jury. Interviews conducted by Ipas described the women’s Thirty-eight cases (29.7%) were dismissed and the re- fear and shame and the resulting negative reactions maining 87 (68%) are still pending as of 2013, meaning from their families, work colleagues, and close friends. these women may still face criminal charges. This legal Some women have not shared the details of their limbo has obvious negative effects on women’s lives; case with anyone (Galli et al. 2010). The clinic raid in addition to the toll it takes on their personal and was widely publicized in the media, but women’s family lives, it may also affect their professional lives. voices have been noticeably absent from the debate. Women may also need to comply with certain report- As a result of the intense and discriminatory investi- ing requirements, including prohibitions on travel out gations,23 many women today seeking abortion-relat- of state without a judge’s authorization, for example. ed care fear stigmatization, criminal investigation and disclosure of their private medical histories to their In-depth qualitative analysis of eight judicial pro- families, coworkers, or the public at large. ceedings show that the majority of cases entered the criminal justice system when women were re- The Mato Grosso case was followed by other similar ported by public servants (health-care providers and/ cases. Police raids on clandestine abortion clinics in or military police agents working in these services) different states have led to the arrest and prosecution when they found evidence of illegal abortions. Mili- of women and doctors. In August 2009, for example, tary police who work in the public health system and the police raided four clinics in the city of Rio de Ja- receive complaints from providers can investigate neiro. These events are little known in Brazil outside if women had committed a crime before seeking the states where they took place.24 The threat to vulnerable women in Latin America 9

FINDINGS

Argentina25 In Argentina, data and cases reviewed by the Centro tion to judicial and penal records, the major national de Estudios de Estado y Sociedad (CEDES) and Asoci- newspapers published from 2006 to 2012 were also ación por los Derechos Civiles (ADC ), indicate that it reviewed.26 is unskilled individuals who are investigated, reported and prosecuted for performing allegedly illegal abor- Results tions. The greatest percentage of sentences for the crime of abortion is against these unskilled individuals. The research conducted by CEDES identified 417 In contrast, cases such as that of the female Argen- sentences nationwide for the crime of abortion tinian physician reported for committing the crime of between 1990 and 2008. Judicial records do not abortion (see page 10 and subsequent pages of this indicate whether those people were imprisoned, report) are exceptional and, as occurred in that case, paid a fine or whether they were granted conditional these reports usually are rejected. Between 2002 and freedom. However, the fact that they were declared 2008, these sentences represented 80 percent of the guilty of a crime means that all of them now have a total and were four times greater than sentences re- criminal record. corded against women who had an abortion. Between For the period 1996–2008, the national total number 1996 and 2008, a total of 234 sentences for this crime of sentences was 234. were confirmed nationwide. The jurisdictions with the most convictions in this Articles 85 to 88 of the National Criminal Code crimi- earlier period were Buenos Aires province, with 23 nalize abortion; penalties are differentiated based on percent of the total number in the country; Santa Fe the actor and whether the woman consented to the province, 22 percent; Córdoba province, 7 percent; abortion, among other factors. Punishments range and the city of Buenos Aires, 5 percent.27 These are from prison terms of one to ten years. the four most populous jurisdictions in Argentina. In the Province of Buenos Aires, during the period Methodology 2009–2011, 343 criminal actions were initiated, of In each jurisdiction, information requests were which the vast majority were filed. It is surprising to submitted to the Fiscal Public Ministry, the Supreme see the low number of investigations recorded in the Court of Justice and Appeals Chambers, the Min- Province of Buenos Aires, compared to those record- istry of Justice, the Ministry of Defense, and the ed in the City of Buenos Aires. Keeping in mind that Prison Service. Data analyzed included a 1990–2008 the Province’s population is five times higher than report examining judicial records on abortion crim- that of the City, there is little variation between the inalization produced by the Centro de Estudios de number of actions initiated in the Province and those Estado y Sociedad (CEDES). Researchers verified initiated in the City. that unskilled individuals providing abortions are Based on national-level data from 2002–2008, more prosecuted four times as often as the women who than 80 percent of the convictions were against un- have abortions. In addition, researchers showed that skilled individuals. In Buenos Aires province, unskilled there is a decreasing trend in the number of wom- individuals represented 37 percent of the total number en sentenced for the crime of abortion. The Ipas of convictions in the country; in the city of Buenos study updated CEDES’s research and looked at the Aires, 4 percent; in Santa Fe province 20 percent; and country’s four most populous jurisdictions. In addi- in Cordoba, 11 percent. 10 When Abortion Is a Crime

Legal barriers and risks A. knew at that time that prescribing misoprostol for an abortion was illegal in Argentina. However, to women’s health given that E. had made it clear that she intended to The 1966 legal case Natividad Frias established that have an abortion at all costs, and, concerned about a criminal complaint presented by a health-care abortion-related maternal mortality among adoles- provider against a woman for an illegal abortion vio- cents in Argentina, A. decided to prescribe the drug. lated her confidentiality rights and her right against She explained that doing so was consonant with her self-incrimination.28 In 2010, the National Supreme ethical and professional responsibilities to provide Court of Justice reaffirmed this principle, which may information to her patients and to offer an alternative explain the low number of cases of women who have to unsafe abortion. She added that dispensing this been investigated or found guilty for abortion in type of medical counsel was standard practice at the comparison with the number of cases against health- clinic (personal communication, January 24, 2013). care service providers who have been investigated, prosecuted and sentenced. E. purchased the misoprostol and used it on her own to induce an abortion. When E.´s parents learned The case of A.,29 which we discuss below, is excep- about her actions they pressed charges against A. tional. A., a 34-year-old physician, mother of two, worked at a health center in a marginalized neigh- In May 2011, A. was formally charged with performing borhood in Buenos Aires. In February 2011, E., a an illegal abortion. Her public defender provided little pregnant 12-year-old neighborhood girl, sought an clarity or information on the proceedings, which . The girl, accompanied by her boyfriend, A. to find a more competent lawyer on her own. It was went to the local health center. A. prescribed miso- not until almost a year later, in February 2012, that she prostol, a medical drug recommended by the World finally appeared before a judge. After being criminally Health Organization for pregnancy termination, and prosecuted for more than a year, in July 2012, the Ju- advised E. on its proper use. diciary closed the case against A. The prosecution did not appeal the decision. Misoprostol is legal in Argentina but it is only autho- rized for distribution as a treatment for gastric ulcers. When asked if she would do the same thing again, A. simply replied, yes. The threat to vulnerable women in Latin America 11

Human Rights Obligations Maintaining restrictive abortion laws that criminalize Rights, all of which require signatories to fulfill their women clearly goes against the human rights pro- obligations to protect women’s human rights to tections of global and regional treaties signed by health, equality and non-discrimination, and the Argentina, Bolivia and Brazil and a growing body of right to life.30 international law and guidance. According to both international and regional author- All three countries have signed major global human ities, criminalizing abortion violates women’s human rights treaties, including the Convention on the Elim- rights. Such laws infringe on women’s dignity and ination of All Forms of Discrimination against Women autonomy, lead to poor health outcomes and result (CEDAW); the Inter-American Convention to Punish, in death. The Committee on the Elimination of Prevent and Eradicate Violence Against Women; the Discrimination against Women (CEDAW Commit- International Covenant on Civil and Political Rights tee) stated in General Comment 24 that “legisla- (ICCPR); and the International Covenant on Economic, tion criminalizing abortion should be amended, in Social and Cultural Rights (ICESCR). order to withdraw punitive measures imposed on women who undergo abortion.” International Hu- At the regional level, Argentina, Bolivia and Brazil man Rights authorities state that States must over- have ratified the Inter-American Convention on the turn criminal and restrictive abortion-related laws Prevention, Punishment, and Eradication of Violence in order to uphold the right to health and that laws against Women, known as the Convention of Belém criminalizing abortion should not punish women do Pará, and the American Convention on Human who have abortions.

UN Special Rapporteur Report on the Consequences of Abortion Criminalization

Anand Grover, the Special Rapporteur on unconditional the Right to Health for the United Nations even where Human Rights Council, reported to the the threat of United Nations General Assembly on August criminal pun- 3, 2011, “the overarching threat of being ishment is present, and it should not investigated, prosecuted and punished be contingent on a woman’s coopera- within the criminal justice system has sig- tion in any subsequent criminal prosecu- nificant negative impacts on the emo- tion, or used as evidence in any proceed- tional health and well-being of both those ing against her or the abortion providers. who seek abortions and those who do not.” Laws must not require healthcare person- nel to report women for abortion-related care Moreover, his report stated, women “are enti- to law enforcement or judicial authorities.” tled to have access to quality health ser- vices for the management of complications, Among his conclusions: “Decriminalize including those arising from unsafe abor- abortion, including related laws, such as tions and miscarriages. Such care must be those concerning abetment of abortion.” 12 When Abortion Is a Crime

Particularly relevant to this report, governments also The laws of Argentina, Bolivia and Brazil do not ex- violate the human rights of women seeking abortion plicitly require providers to report illegal abortion as and abortion providers in ways that are specific to the is the case, for example, in Peru.37 Yet confidentiality enforcement of criminal abortion laws. While few of was breached in all three countries when health-care the many illegal abortions in Argentina, Bolivia and providers reported women who were hospitalized for Brazil result in arrest or prosecution, enforcement of medical care to law enforcement authorities. Confes- the law when it occurs is discriminatory, targeting the sions obtained while women received care in public most vulnerable women in society, and violates wom- hospitals or when misoprostol was found during a en’s rights to dignity, freedom from torture, privacy gynecological exam also violated women’s right to and confidentiality. Other human rights, such as the privacy and confidentiality. These breaches of pri- rights relevant to criminal proceedings and the right vacy were made worse when women in Bolivia and to information, may also be violated. Brazil were jailed for the crime of having terminated a pregnancy. The case of police raids of clinic records in Mato Grosso do Sul, Brazil, described earlier in this report, was also a particularly egregious intrusion on = women’s rights to basic privacy and confidentiality in health-care facilities. Right to equality and non‑discrimination Everyone has a right to equal access to the highest attainable standard of health care31 and to equality before the law and before the courts and tribu- Right to be free from torture or other nals.32 This report highlights the multiple ways in which women are discriminated against because of inhuman or degrading treatment criminal abortion laws. The CEDAW Committee has Enforcement of criminal abortion laws often violates deemed discriminatory the criminalization of health- the prohibition of torture and ill-treatment, under care services that only women need.33 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment. Governments also violate the Torture Convention when they allow health-care providers to deny care to women for complications of unsafe abortion in order to elicit a confession or for the purposes of Right to privacy and confidentiality criminal punishment.38 Confidentiality is a key aspect of the right to priva- The findings from Bolivia and Brazil in which women cy according to medical ethics and human rights were arrested while in the hospital receiving medical standards on reproductive health care.34 Health-care care or were handcuffed to their hospital beds are providers have a duty to protect medical informa- clear examples of violations of the right to be free tion against unwanted disclosure and to ensure that from torture and degrading treatment. women who do authorize release of confidential information do so freely (World Health Organiza- tion 2012). International human rights authorities have called on governments to “Require all health services to be consistent with the human rights of women, including the rights to…confidentiality…35 and to take effective measures to ensure medical confidentiality and privacy.”36 The threat to vulnerable women in Latin America 13

Conclusion Women who are prosecuted for illegal abortions in Punitive abortion laws are meant as scare tactics, stig- Bolivia, Brazil and Argentina face bias and neglect in matizing a safe and common medical procedure, and the criminal justice system. Enforcement of the law is seeking to prevent women from having abortions. selective and discriminatory, with the highest burden They take away women’s reproductive autonomy and and risk of prosecution falling on the generally poorer force them to seek illegal and unsafe services. women who use the public health systems. These Policymakers should understand that abortion will marginalized women are stripped of their rights to always be necessary: An estimated 33 million con- due process and judicial guarantees and protection. traceptive users worldwide experience accidental They face arbitrary preventive arrest, high fines, stig- pregnancy annually while using contraception (World ma and public condemnation, simply because they Health Organization 2012). Unwanted pregnancy and need a basic health service. abortion is a normal experience for women during Their treatment raises significant legal, ethical, pub- their reproductive years, and yet it is one of the rare lic health and human rights concerns. This view is medical procedures that is criminalized. Most egre- supported by legal experts, human rights experts giously, criminal abortion laws discriminate against and medical professionals, all of whom recognize women since only women can become pregnant. that criminalizing abortion does not result in fewer abortions but does have significant negative medical, social and penal consequences.

Recommendations • At a minimum, governments should take immediate • In order to fully protect and uphold women’s rights, action to ensure that any woman or health-care governments must remove criminal penalties on provider investigated or criminally charged for abortion, educate the judiciary and the health abortion receives full procedural protections in sector on sexual and reproductive rights, and accordance with the right to judicial due process. eliminate all barriers to access to safe and legal abortions. • Governments should ensure that adequate, effec- tive procedures are in place to give all women of • Laws that govern areas such as medical malprac- reproductive age access to abortion where per- tice, fraud, health services, the medical professions mitted by law and to postabortion care without and assault can and should be used to appropri- discrimination. ately penalize individuals who provide abortion without adequate skill. Abortion need not be • Governments should protect the right to privacy criminalized to ensure that when a woman seeks to and confidentiality for women seeking post- end a pregnancy, the procedure is performed in a abortion care. They should develop guidelines safe manner. and policies to guide health-care providers on the importance of preserving patient confidentiality and safeguarding medical records. In addition, in the interests of women’s health and safety, policies should protect them from arrest or prosecution when they are in health facilities. 14 When Abortion Is a Crime

References Cavallo, M. (2011). Conflicting Duties McNaughton, H. L., Mitchell, E. M. H., Over Confidentiality in Argentina and Hernandez, E.G., Padilla, K., & Blandon, M. M. Peru. International Journal of Gynecology (2006). Patient Privacy and Conflicting Legal & Obstetrics, 112 (2011): 159–162. and Ethical Obligations in El Salvador: Report of Unlawful Abortions. American Journal Center for Reproductive Rights. 2011. of Public Health, 96 (11): 1927–1933. The World’s Abortion Laws 2011. http:// www.worldabortionlaws.com. Orentlicher, D. F. (1990). Bearing Witness: The Art and Science of Human Rights Fact-Finding. Central Intelligence Agency. The World Factbook. Harvard Human Rights Journal, 3: 83–135. https://www.cia.gov/library/publications/ the- world-factbook/geos/bl.html. Robinson, J. (2012). Idaho Woman Arrested for Abortion is Uneasy Case for Both Sides. Devereux, G. (1976). A study of abortion in primitive NPR, April 9, International. http://www.npr.org/ societies. New York: International Universities Press. templates/story/story.php?storyId=150312812. Duffy, G. (2008). Brazil targets illegal abortions. Sedgh, G., Singh, S., Shaha, I. H., Ahman, E., BBC News, November 21, International. http:// Henshaw, S. K., & Bankole, A. (2012). Induced news.bbc.co.uk/2/hi/americas/7740996.stm. abortion: incidence and trends worldwide from Galli, B., Sydow, E., & Adesse, L. (2010). 1995 to 2008. Lancet, 6736 (11): 61786–61788. Autonomia reprodutiva em questão: Relatos United Nations Population Division. 2001. Abortion de mulheres sobre aborto e estigma em Mato policies: A global review. Volume I-Afghanistan to Grosso do Sul. Rio de Janeiro: Ipas Brazil. France. Second edition. New York NY: United Nations. Galli, B. (2011). Negative Impacts of Abortion United Nations Population Division. 2002. Criminalization in Brazil: Systematic Denial of Abortion policies: A global review. Volume Women’s Reproductive Autonomy and Human III-Oman to Zimbabwe. Second edition. Rights. University of Miami Law Review, 65 (969). New York NY: United Nations. Jewkes, R., Brown, H., Dickson-Tetteh, K., Levin, J., & World Bank. Data by Country: Argentina. http:// Rees, H. (2002). Prevalence of morbidity associated data.worldbank.org/country/argentina. with abortion before and after legalization in South Africa. British Medical Journal, 234 (1252). World Health Organization. 2008. World health report 2008-Primary health care: Now more Joffe, C. (2009). Abortion and medicine: A than ever. Geneva, Switzerland: WHO. sociopolitical history. In Management of unintended and abnormal pregnancy: Comprehensive abortion World Health Organization, 2011. Unsafe abortion: care, ed. Paul, M., Lichtenberg, S. E., Borgatta, global and regional estimates of the incidence L., Grimes, G., Stubblefield, P.G., & Creinin, of unsafe abortion and associated mortality, M.D. 1–9. West Sussex, UK: Wiley-Blackwell. Sixth edition. Geneva, Switzerland: WHO. Kumar, A., Hessini, L., & Mitchell, E. M. H. (2009. World Health Organization. 2012. Safe abortion: Conceptualising abortion stigma. Culture, technical and policy guidance for health systems. Health & Sexuality: An International Journal for Second edition. Geneva, Switzerland: WHO. Research, Intervention and Care, 11(6), 1–15. The threat to vulnerable women in Latin America 15

Endnotes 1. Argentina in 1927, Bolivia in 1972, Brazil 1940, ing witnesses or participants to falsely report Chile in 1874 (amended for more restrictions what had taken place. In fact, at the time of in 1989), Colombia in 1980, Ecuador in 1971, her arrest Helena had both housing and a job. Paraguay in 1997, Peru in 1924 (amended in 14. Not her real name 1991), Uruguay in 1933, Venezuela in 1964 15. Getulio Vargas Foundation Universi- 2. http://news.bbc.co.uk/2/hi/americas/7740996.stm ty qualitative research of judicial case 3. http://www.npr.org/templates/sto- in the criminal court (unpublished). ry/story.php?storyId=150312812 16. Research conducted by Ana Paula Sciammarella 4. See http://reproductiverights.org/sites/crr. 17. See Cunha JR, Noronha R. and Vestena CA. 2011. civicactions.net/files/documents/TCIDT.pdf In: Challenges to constitution democracy and 5. Criminalization of Abortion: Analysis from Public State in XXI century. Martins de Carvalho F and Security System media data in the state of Rio de Vieira JR. Federal University of Rio de Janeiro, Janeiro 2012 Institute of Religious Studies ISER Rio de Janeiro. Research findings are available in (final research report, unpublished) and Women the article “Women incriminated for abortion in criminalized for abortion in Rio de Janeiro: Diag- the Justice Tribunal of Rio de Janeiro state: char- nosis from actors from Justice System, Research acters, discourses and arguments.” http://pesqui- Group Human Rights, Judiciary and Society of saconstitucional.files.wordpress.com/2010/06/ the State University of Rio de Janeiro and Ipas desafios-da-constituicao_versao_eletronica.pdf (final research report, not published) 2012. 18. Research conducted by The Study Group 6. Women criminalized for abortion in Rio de of the State University of Rio de Ja- Janeiro: Diagnosis from actors from Justice neiro (UERJ), with Ipas support System, Research Group Human Rights, Judi- 19. The interview guide included general questions ciary and Society of the State University of Rio on cases of women charged for abortion, fol- de Janeiro and Ipas (final research report, not lowed by queries on what was the more common published) and Ipas submission to the Special judicial case related to abortion entered in the Rapporteur on Torture, November 21 2012. justice system; what happen to these women and, 7. A case is archived when no judicial action if they are convicted, what was the most common has been taken for a long period of time. sentence or legal measure applied; and if they could talk about recent cases they have known. 8. Bolivian Penal Code: Article 265. 20. Previous Ipas research in five states in Bra- 9. There are representatives of the Public Pros- zil found that women who have abortions ecutor Office in the 9 Departments. suffer ill treatment, prejudiced attitudes and 10. Considered the information provided from moral judgments from health-care providers February 2008, in consideration of the maxi- and hospital staff. See: http://www.ipas.org/ mum duration of the criminal proceedings. en/Resources/Ipas%20Publications/Advoca- cy-for-access-to-safe-legal-abortion--Similar- 11. The numbers from La Paz includes data ities-in-the-impact-of-abortions-illega.aspx from the cities of El Alto and La Paz, which are under the jurisdiction of the 21. Ipas Brasil, Processos judiciais envolven- La Paz Court Justice Departmental. do abortamento: Negacao dos direitos re- produtivos das mulheres em Mato Grosso 12. Not her real name do Sul (2008), available at http://www.aads. 13. The prosecutor placed Helena in preventative org.br/arquivos/RelatorioMS_FINAL.pdf detention stating that she had neither permanent housing nor a job and was at a risk of influenc- 16 When Abortion Is a Crime

22. Tribunal de Justiça de Mato Grosso do Sul, Júri: 32. ICCPR, Articles 14 and 26 ex-funcionárias de clínica de aborto são con- 33. Committee on the Elimination of Discrimination denadas, DIREITO2 (Apr. 9, 2010), http://www. Against Women, General Recommendation 24: direito2.com.br/tjms/2010/abr/9/juri-ex-funcio- Women and Health (20th Session 1999), para. narias-de-clinica-de-aborto-sao-condenadas. 31(c); The UN Special Rapporteur on the inde- 23 Nilcéa Freire, Fúria Judicial Contra as Mul- pendence of judges and lawyers named the crim- heres, Ipas (Apr. 24, 2008), http://www. inalization of abortion as an example of criminal ipas.org.br/noticias2008.html#9800. legal provisions that are discriminatory against women, further stating that: “Judges must be in 24. See Ronaldo Braga, Operação da Polícia Civil a position to challenge gender stereotyping and fecha duas clínicas de aborto em Botafogo, O discrimination when they encounter it in the form GLOBO (Aug. 13, 2009), http://oglobo.globo. of wrongful charging of suspects, charges being com/rio/mat/2009/08/13/operacao-da-poli- brought without any supporting evidence of cia-civil-fecha-duas-clinicas-de-aborto-em-bota- wrongdoing and merely on the basis of hearsay, fogo-757384655.asp; Laurlindo Ernesto, Polícia or mischarging of a particular form of conduct descobre clínica de aborto em Botafogo, O (like charging abortion as infanticide).” (United DIA (Aug. 13, 2009), http://odia.terra.com.br/ Nations General Assembly. 10 August 2011. portal/rio/html/2009/8/policia_descobre_clini- Interim report of the Special Rapporteur on the ca_de_aborto_em_botafogo_29277.html; Polí- independence of judges and lawyers. A/66/289). cia fecha duas clínicas de aborto em Botafogo, GLOBO.COM (Aug. 13, 2009), http://g1.globo. 34. Human Rights Committee. General comment com/Noticias/Rio/0,,MUL1265484-5606,00.html. no. 28: equality of rights between men and women (article 3). United Nations 2000; Com- 25. Research conducted by the Asocia- mittee on the Elimination of Discrimination ción por los Derechos Civiles (ADC) against Women. General recommendation 26. This included analysis of online archives of the no. 24: Women and health (article 12). United most important newspapers in the focus jurisdic- Nations, 1999; Committee on Economic Social tions of the City of Buenos Aires and the prov- and Cultural Rights. General comment no. 14: inces of Buenos Aires, Santa Fe and Córdoba. The right to the highest attainable standard of health (article 12) United Nations, 2000. 27. Buenos Aires Province (15 million people) city of Buenos Aires (3 million) Cordoba Province 35. CEDAW General Recommendation 24, para 31(e) (3 million) and Santa Fe Province (3 million) 36. Commission on Human Rights, Report of the 28. Natividad Frias, Cámara Nacional de Apela- Special Rapporteur Paul Hunt, E/CN.4/2004/49, ciones en lo Criminal y Correccional de Cap- 16 February 2004. Available at: http://www. ital Federal, en Pleno (CNCrimCorr)(Pleno) ifhhro.org/images/stories/ifhhro/docu- F., N. PUBLICACION: LA LEY, 123–842–JA, ments_UN_special_rapporteur/3_4_5.pdf 966–V–69. http://new.pensamientopenal.com. 37. See Promsex’s report on the medical require- ar/sites/default/files/2012/07/fallos24.pdf ment to report in Peru, http://www.promsex. 29. Not her real name org/documentacion/documentos/acceso-al- aborto-legal/92-medicos-en-conflicto-entre- 30. For a good overview of abortion as an inter- la-cura-y-la- denuncia-articulo-30/download national human right, see Christina Zampas and Jaime M. Gher, Abortion as a Human 38. Report of the Special Rapporteur on tor- Right — International and Regional Standards, ture and other cruel, unhuman, or degrad- 8 Human Rights Law Review 249 (2008). ing treatment or punishment to the Human Rights Council. 1 February 2013, Human 31. Article 12, ICESCR Rights Council, 22 Session, A/HRC/22/53.

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